February 2026 Docket Review
This month, the Court issued 6 precedential opinions and 2 allocatur grants.
On the opinion side, I’m most interested in the Court’s fractured opinions in Malcolm. Factually, police investigating a murder interrogated Malcolm, and, when he denied involvement, they made statements suggesting that he was lying and guilty. At Malcolm’s ensuing trial, the Commonwealth played the video of the interrogation. Malcolm challenged the introduction of the detectives’ statements as improper based on a Superior Court case, Kitchen, analogizing similar statements as akin to prosecutors expressing their personal beliefs on credibility and guilt to the jury, which is improper prosecutorial remark. The trial court admitted the evidence, and, on appeal, the Superior Court distinguished Kitchen on the ground that the detectives here did not outright accuse Malcolm of lying (a distinction less of category than degree). It also found that any error in their admission would be harmless because the detectives were available for cross-examination and the trial court emphasized in instructions to the jury that it was the ultimate factfinder.
The Court granted allocatur in Malcolm to consider Kitchen’s framework and application, but ultimately militated no majority. Justice Mundy, in an opinion announcing the judgment of the Court joined by Justice Brobson, declined to adopt Kitchen in favor of traditional relevance and prejudice rules. Applying those, she found no abuse of discretion in the trial court’s admission of the statement, and offered several thoughts approximating harmless error analysis, albeit disclaming any harmless error holding. Justice McCaffery, joined by Justice Dougherty, authored a concurrence which reasoned that the statements were irrelevant, but harmless, particularly given the instructions. Justice Wecht, joined by Chief Justice Todd found the statements to be irrelevant and prejudicial, and that the trial court’s instructions were insufficient to dispel the prejudice, borrowing themes from the Court’s earlier prosecutorial misconduct jurisprudence.
What to make of Malcolm? Formally, Rule 402 and Rule 403 apply, not a special “Kitchen” rule, which is consistent with the Court’s now-decade-or-so long (and in this author’s view, salutary) trend of collapsing doctrinal wrinkles that overcomplicate what are essentially fact-specific questions for trial courts and juries. Everyone seems to agree. But functionally, a majority of the Court - Chief Justice Todd and Justices Donohue, Dougherty, Wecht, and McCaffery - appear to be of the view that statements like these are generally inadmissible for the reasons that undergirded Kitchen’s holding. And as to how the statements are evaluated in the context of harmless error, there is no majority position.
But what is a trial judge to do? Notwithstanding the names and postures of the opinions in the Malcolm case, the safe thing to do is to exclude the statements, not to prepare jury instructions and hope. So perhaps this is less of an abrogation of Kitchen, and more of a Kitchen remodel.
On the allocatur side, I’m most interested in Coyne. In that case (and several other companion cases), county child protective services caseworkers charged with failing to report child abuse argue that they are entitled to immunity from prosecution under a provision of the Child Protective Services Law. The dispute centers on the scope of that immunity - whether it applies solely in the context of reporting child abuse and providing services, as the Superior Court held, or more broadly, as the caseworkers argue. The statutory interpretation question will have significant implications for whether and under what circumstances caseworkers’ conduct is evaluated not only as a government service, but as a criminal matter as well.
Precedential Opinions
Brown v. Gaydos, 22 WAP 2024 (Opinion by Mundy, J.) (holding that a party seeking co-employee immunity under the Workers’ Compensation Act must show not only that he is in the same employ as the other party but also that the injury occurred while the party was in the same employ)
Commonwealth v. Hawkins-Davenport, 4 EAP 2025 (Opinion by Mundy, J.) (holding police conducting a traffic stop may seize a weapon in plain view and within the driver’s reach while ascertaining the driver’s licensure status)
Commonwealth v. Malcolm, 46 EAP 2024 (holding the admissibility of statements of interrogating police during videotaped interrogation are subject to traditional relevance and prejudice analysis)
In re: M.L.R., 2 MAP 2025 (Opinion by Todd, C.J.) (holding mother’s petition to terminate father’s parental rights without terminating her own was not cognizable because it was not in anticipation of an adoption)
See also Concurring Opinion by Dougherty, J.
See also Dissenting Opinion by Wecht, J.
Eastern Steel Constructors, Inc. v. Intl. Fidelity Ins. Co., 103 MAP 2023 (Opinion by Wecht, J.) (holding Pennsylvania’s bad-faith insurance statute does not apply to surety contracts issued by insurance companies)
Commonwealth v. Smith, 815 CAP (Opinion by Brobson, J.) (reversing dismissal of claim that capital sentencing counsel was ineffective in failing to object to evidence that his client read books about murder and aspired to be a serial killer as irrelevant and unfairly prejudicial)
Allocatur Grants
Commonwealth v. Coyne, et al., 563 MAL 2025 et al. & Commonwealth v. Kiessling, et al, 453 MAL 2025 (granting review to consider several issues of statutory interpretation with respect to county agency employees’ immunity from prosecution for failing to report child abuse)
Zapata v. Dept. of Hum. Servs., 360 EAL 2025 (granting review to consider several issues of statutory interpretation related to Act 150’s in-home attendant care benefit regime)
